SHAKEEL AHMAD, J.---Through this constitutional petition filed under Article 199 of the Islamic Republic of Pakistan, 1973, petitioner has called in question the judgment and decree dated 13.02.2018 passed by the learned Additional District Judge-I, Abbottabad, in Appeal No. 59/FC of 2015, whereby the judgment and decree dated 28.09.2015, passed by the Judge Family Court-III. Abbottabad, was modified and respondent was held entitled for the possession of the suit house and maintenance allowance @ Rs. 5,000/- per month since February, 2012 till subsistence of marriage and in case of dissolution of marriage till expiry of period of Iddat as the case may be.
2. The petitioner and respondent No.1 were married on 20.11.2009 according to Sharia Muhammadi at District Abbottabad. Respondent No.1 on 27.07.2013 filed a composite suit before the Family Court at Abbottabad, claiming recovery of Rs. 145,734/- as dower., maintenance allowance @ Rs. 5000/- per month w.e.f.
20.12.2009 and onward with 15% annual increase and possession of suit house or in alternate recovery of Rs.
10,00,900/- as its market value and recovery of Rs.200,000/- as enumerated in column No. 18 of the Nikahnama Ex.PW-1/1. It was averred in the plaint that soon after marriage the petitioner left for America leaving the respondent alone and failed to provide her with maintenance, on his second visit to Pakistan, she was dragged out of home, hence, necessitated to file the suit.
3. After service of summons, petitioner put his appearance through his attorney, contested the suit by way of filing written statement raising therein many 9 factual and legal objection, from divergent pleadings of the parties, following issues were framed and parties were directed to produce their respective evidence. i. Whether plaintiff has got cause of action? ii. Whether this ,court has got jurisdiction to entertain prayer "Ake" and "Jeem" of plaint? iii. Whether dower of plaintiff has already been paid by defendant in shape of gold ornaments? iv. Whether plaintiff is self-deserted? v. Whether defendant is entitled for recovery of 80000 American dollars, to laptops valuing Rs.70,000/- 4 blackberry cell phones, 4 glaxy ford cells phones valuing Rs. 200.000/-? vi. Whether plaintiff is entitled for recovery of dower @ Rs. 145,743/-? vii. Whether plaintiff is entitled forir recovery of her maintenance allowance @ Rs. 5000/-PM from 20.12.2009 till subsistence of marriage with 15% annual increase? viii. Whether plaintiff is entitled for possession of house situated at Kala Ban Malach Tehsil and District Abbottabad or in alternate its market value Rs. 10, 00, 000/- ix. Whether plaintiff is entitled for recovery of Rs. 200,000/- as per column No.18 of Nikahnama? x. Relief?.
4. In order to prove her contention respondent No.1 produced as many as five (05) witnesses including herself.
She produced and relied upon Nikahnama as Ex.PW-1/1, on the other hand, the respondent produced two (02) witnesses in his defence. The learned Family Judge seized of the matter, upon conducting the trial passed a decree in favour of the respondent No.1 in the following manner: "From the above detailed discussion, it is manifest that the plaintiff has succeeded partially in proving her contentions, hence, the instant suit decreed to the extent of Recovery of maintenance allowance @ Rs. 5000/- PM for past three (03) years and future at same rate till subsistence of marriage.
Possession of house.
Rest of claims of plaintiff stands dismissed. No order as to costs".
5. Not contented with the same, both the parties went in appeal. The learned appeal court, after providing an opportunity of hearing partially allowed the appeal of the respondent No.1 with slight modification in decree regarding the period of maintenance and held her entitled for maintenance w.e.f. February 2012, the rest of the claim of both the parties was dismissed vide judgment dated 13.02.2018, hence, this petition.
6. It was argued by learned counsel for the petitioner that the suit house was given to the respondent No.1 for residential purpose, not in lieu of dower or gift; that the respondent No.1 does not deserve maintenance w.e.f.
February 2012. The respondent No.1 had left the house of the petitioner of her own, therefore, she is not entitled for maintenance.
7. As against that, learned counsel appearing on behalf of the respondent No.1 argued that the suit house was given to her as gift, therefore, it was rightly held that she was entitled for its possession; that it has been proved through evidence; that the petitioner failed to provide her with maintenance, therefore, she left the house under compelling circumstances and period of maintenance was right by giving affect from February 2012 and prayed for dismissal of the petition.
8. I have heard arguments of learned counsel for the parties at length and have gone through the record 'with their able assistance.
9. As far as petitioner's claim qua house is concerned. I have examined column No.17 of the Nikahnama dated 20.11 2009 Ex.PW-1/1, though it was not specifically mentioned that it was given to her either in lieu of dower or as gift, however, it was also not mentioned that it was given to her for residential purpose only. In the absence of such stipulation in the Nikahnama, the suit house given to the wife is conclusive in nature and may be construed as a part of dower or gift in consideration of marriage, therefore, it would be falling with the exclusive jurisdiction of the Family court as envisaged in Section 5 read with Part-I of the Schedule of the Family Courts Act, A 1964 and it has become personal property of the respondent No.1 . It was not denied by the petitioner that the suit house was not given to her as per entry made in column No.17 of the Nikahnama. The special attorney of the petitioner, appeared in the learned trial court as DW-1 and admitted the contents of Nikahnama as correct and stated that column No.17 wherein the suit house has been recorded, is situated in Nathiagali. Abdul Hameed, who appeared as DW-2, admitted claim of the respondent. No.1 in the following manner: {{URDU TEXT}}
10. In the light of the evidence produced by the parties, particularly, admission of DW-1 and DW-2, the learned lower fora rightly held her entitled to possession of the suit house.
11. Now adverting to maintenance whether she deserves maintenance @ Rs. 5000/- PM w.e.f. February 2012 or not. I perused column No.20 of the Nikahnama, it is clearly and unequivocally mentioned therein that she would be entitled for maintenance @ Rs.5000/- per month. It was admitted by DW-1 who is attorney of the petitioner that out of five (05) years the petitioner had provided her maintenance only for one year, admittedly, the marriage was solemnized in the year 2009 and according to respondent own assertion she remained in the petitioners house till 2013. From the evidence on record, it can safely be held that the only reason behind leaving the house of the petitioner was not providing of maintenance allowance to the respondent No.1, hence, it is his conduct and negligence, which forced her to leave his house, therefore, the learned courts below rightly held that she is not self deserted. Though she sought maintenance since 2009, but the learned trial court turned down her prayer for maintenance since 2009 and rightly held her entitled for maintenance allowance a Rs.
5000/-per month for past three (03) years and further maintenance allowance at the same rate till subsistence of marriage and declined to grant maintenance beyond period of three (03) years. The judgment and decree of o the learned appeal court to the extent of recovery of maintenance w.e.f. February 2012 beyond period of three
(03) years with 15% increase is illegal, therefore. the same is set aside and that judgment and decree of the learned trial court is restored to that extent only.
12. For what has been discussed hereinabove, this petition is partially allowed in the above terms and the rest of the prayer of the petitioner being bereft of any merit, is hereby declined.